SMART -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WASC 411 (3 December 2018)

3 The second basis of the application is that the applicant has appealed against the decision that I gave on 5 November 2018, which included my decision in relation to a number of other charges for which the applicant had sought bail.

4 The third basis of the applicant's application that I recuse myself is that the State, being the respondent in these proceedings, has put before me material which he says is prejudicial and which would cause me to not be impartial in determining the bail application.

5 The applicant made an application that I recuse myself on the basis of apprehended bias in the previous proceedings, in respect of which I gave my decision on 5 November 2018: Smart v The State of Western Australia (2018) WASC 336 (Smart (No 1)). I dismissed the application on that occasion. In doing so, I reviewed the legal principles in relation to apprehended bias: Smart (No 1) [8] ‑ [13]. I adopt what I had to say in that decision about the principles. I do not propose to examine them again.

6 One of the matters that was of particular importance on that occasion was the fact that judicial officers are allocated matters and are expected to deal with the matters allocated to them. They are not able simply to select the cases that they will hear, and they are not at liberty to decline to hear cases without good cause.

7 In this case, the application for bail has been allocated to me to deal with. It is not a question of my choosing to deal with the application. I cannot decline to hear it without good cause.

8 I turn to the applicant's specific bases on which he says there is apprehended bias which would justify my recusal.

9 First, it is not unusual for a judicial officer to be required to consider bail in relation to a particular accused for the same charges on more than one occasion. It will sometimes happen in cases where a judicial officer is seized of the matter, for instance as the trial magistrate or the trial judge. The Bail Act provides for such circumstances. It would potentially frustrate the administration of justice if it were to be assumed that a judicial officer could not deal with a bail application impartially because he or she has previously considered bail in relation to the same accused for the same charges.

10 It is necessary for the applicant to demonstrate more than the making of adverse findings earlier, in the context of a refusal of bail, to establish apprehended bias, which requires that a reasonable fair-minded person might conclude that the judge might not bring an independent and impartial mind to the determination of the issues that the judge needs to decide in the application. In any event, if the application came before a different judicial officer, he or she would be entitled to have regard to my previous findings in deciding whether to grant bail. That arises specifically under s 7D and s 14(2a) of the Bail Act.

11 The applicant has not referred to any specific aspect of my decision given on 5 November 2018 that would justify the conclusion that a reasonable fair-minded person might consider that I might not bring an independent and impartial mind to the determination of the issues in this case. He has relied simply on the basis that I refused to grant him bail on that particular occasion.

12 As for the fact that an appeal has been brought against my previous decision, it is not unusual for the decisions of judges sitting in the General Division of the Supreme Court to be appealed to the Court of Appeal. Judges give decisions within a system of justice in which errors, if they are made, can be corrected on appeal, and appeal decisions provide guidance in the future consideration by judges of similar matters. In my opinion, a reasonable fair-minded lay observer would appreciate that context and would not conclude that a judge whose decision has been appealed could not act independently or impartially in determining another matter concerning the party who has appealed. Again, the bringing of an appeal against the decision of a judge who is seized of a matter, where it is important for the judge to continue to hear the matter, would have the potential to frustrate the administration of justice.

13 Finally, in relation to the basis that relies on prejudicial matter having been put before the court, I note that judges have to deal with irrelevant and/or prejudicial material from time to time. Indeed, one of the reasons why there is a procedure for having a trial by judge alone is to overcome the potential for a jury to be prejudiced (ie, improperly affected) in its decision-making because of material that may be regarded as prejudicial. Judges are expected, by virtue of their legal training and judicial oath to be able to put such matters to one side and decide cases without prejudice.

14 As I indicated to the applicant, I will not have regard to the matter to which he refers, which is information about his alleged conduct at the conclusion of the proceedings in the Magistrates Court on 13 November 2018. That material is not relevant to the bail application. I was informed by counsel for the respondent that the applicant has not been charged in relation to that alleged conduct and there is no intention to charge him in relation to it.

15 In my view, no reasonable fair-minded lay observer considering the situation within the context of ordinary judicial practice could reasonably apprehend on the basis that I have previously made a decision in respect of bail in relation to the applicant on the same matters, or that he has appealed against that decision or that some prejudicial material was put before me in these proceedings, that I might not bring an independent and impartial mind to the resolution of the questions I am required to decide in this application.

16 Therefore the application that I recuse myself on the basis of apprehended bias is dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.